What does an appeal look like after having done 2,000 of them? John Dodd is one of the few people with that vantage. A former staff attorney at the Court of Appeal who has volunteered on the juvenile-dependency panel along with his civil appeals practice, John explains how “an appeal is an appeal.” Once you have spotted some of the key differences among the various disciplines, it all comes down to the rudiments of appellate procedure and advocacy.
We also discuss:
🏠 Juvenile dependency appeals, and when “the overweening hand of the government” unnecessarily disrupts families.
🏛 How he won the Sanchez case (barring the expert-witness end-run around the hearsay rule for case-specific hearsay) and became one of the leading experts on Indian Child Welfare Act, now a hot issue among constitutional scholars.
🤵 Should you waive oral argument? It probably won’t make a difference but—what if it does?
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John Dodd 0:03
The overweening hand of government is interfering with their family unnecessarily, basically, as far as I'm concerned and appeals
and appeal, welcome to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal, and the California Supreme Court. And now your hosts, Tim Kowal and Jeff Lewis.
Jeff Lewis 0:25
Welcome, everyone. I am Jeff Lewis.
Tim Kowal 0:27
And I'm Tim Kowal The California appellate law podcast as a resource for trial and appellate attorneys. Both Jeff and I are appellate specialists. But we split our time about evenly between trial and appellate courts. And in each episode of the podcast, we tried to give our audience trial and appellate attorneys some news and insights they can use in their practice. If you find this episode, a resource a good resource, please recommend it to your colleagues.
Jeff Lewis 0:47
And if you don't like it, send it onto your opposing counsel. And a quick thank you to our podcast sponsor case tech case Texas is a legal research tool that harnesses AI and a lightning fast interface to help lawyers find case authority fast a bit of subscribers with 2019 I highly endorse their service and listeners of our podcast or receive a 25% lifetime discount available to them if they sign up at casetext.com/calp that's casetext.com/CALP.
Tim Kowal 1:11
All right, Jeff and today we are pleased to welcome John Dodd to the show. John has been a certified appellate specialist since 1996. Love to ask them when they started issuing those certificate and it's handled over 1000 appellate matters. But let me stop and back up a minute and read that more slowly. John has handled over 1000 appellate matters. And John has been practicing for over 30 years after graduating from law school, John worked as a staff attorney with the Fifth District Court of Appeal and he practiced with private law firms before founding his own firm. He's admitted to practice in California and the Supreme Court of the United States and the United States Courts of Appeals for the seventh and ninth circuit. Originally, John's law practice combines civil litigation and appellate practice, but later he transitioned to devoting full time his practice full time to appellate matters. And he's done that for over 20 years. And a couple other nuggets from John's very long CV John has served as a member of the California Advisory Commission to the United States Commission on Civil Rights from 2007 to 2013. In 2004, John served as the chairman of the committee of Bar Examiners for the State Bar of California after completing three years as a committee member, and from 98 to 2001. He served on the Commission on Judicial Nominees Evaluation, colloquially known as the Gini commission for the State Bar of California. So without further ado, welcome John Dodd to the podcast. Thanks for being here. Thanks, Tim. And Jeff, glad to be here. All right, well, let's continue gonna do it a vitals bio lightning round here and talk a little bit more about your practice area. Now you do exclusively appellate work for the past 20 years, what kinds of appeals all types of appeals? Or do you focus on some
John Dodd 2:48
all types of appeals, we've stopped and we don't do Criminal Appeals anymore, unless it's from somebody that I've already done a case with in the past and trial attorney. I do have one capital case that's pending, but it's about pretty evenly split between appointed dependency cases and just regular retained civil cases. Today, I'm working on a probate case it can be probate, real estate, family law, you know, basically, as far as I'm concerned, and appeals and appeal, unless you're just some arcane area, like sequel or something, you know, just you have to read everything every time to do it. Right. Anyway. So I don't think it really matters what kind of case it is. Oh, interesting.
Tim Kowal 3:24
I was gonna ask you about that. So you just said and appeals and appeal. So when you when someone comes to you with a family law appeal, or a personal injury appeal or a probate appeal, do you just see it as an appeal? Obviously, there are differences. But tell us how you see those differences after 30 years and over 1000 appeals?
John Dodd 3:40
It's actually over 2000 appeals, I have to update my bio. But we're really never catch up. Well, that you know, the basic fundamentals, you have to figure out the standard review. That's always you know, a key thing you have to be able to organize and describe what happened in your Statement of case and facts that applies to any kind of case. And there are so many issues, unless you're dealing with, let's say family law, which generally have I don't know what the number is maybe 10, primary issues, move aways, business evaluations, things like that. But within a family law case, you can have a variety of evidentiary questions that aren't really family law questions, but their evidence questions. And so those cut across any kind of appeal,
Tim Kowal 4:24
right? So you've got your specialized types of questions in any particular area, but all civil appeals will involve standards of review, evidentiary evidence type questions or just a lot of bread and butter issues that any appellate attorney is going to need to learn how to deal with. Correct okay. One other one new ones that I've noticed in juvenile cases now I when I review recent opinions to find interesting things to write about and talk about, I usually zoom right past those juvenile dependency cases they're too much for me, but I do notice because I have a Westlaw alert set for CCP 909 findings. That's where the Court of Appeal can make findings on its own in the first inning. stents in the Court of Appeal always says that we very rarely extra exercise this discretion. And I've actually only ever seen it done in these juvenile dependency cases. So is that a consideration that you have to be aware of, you know, be top of mind when you do these juvenile dependency cases is, Should I ask the court to find out?
John Dodd 5:18
And generally, you know, the courts will only do that in order to affirm the case. Oops, something popped up on my screen here. Sorry about that. Okay, we probably continue to see me, but I didn't see you. So they only do that in order to affirm the case. But in very rare instances, will they take additional evidence to reverse and they're generally very loath to do that, but it's very active in the dependency cases these days. Others is hot issue of the Indian Child Welfare Act. And it's basically a not an Indian Child Welfare Act question. It's the standard review question or standard prejudice questions. My office, we actually my wife and myself were appointed on this case, we just filed an opening brief on the merits last week, and other courts of appeal around the state had no less than seven different analyses on the proper standard of evaluating prejudice, whether that's reverse or per se, or or never, you know, what hell freezes over? Type standard of evaluating prejudice. So in these cases, where the county maybe didn't properly notice the Indian tribes, then the county will run around and do it after you file your brief and then file a 909 motion and say, well, we've fixed it now. And a lot of times, the court says to add, you didn't fix it earlier. And sometimes they take it. So yeah, but I don't I motions, and that's another hot topic, actually, in these dependency cases, because in a dependency case, you're marching along, you have initial hearing, and then hearings all the way along for about two years. And so stuff can happen, you know, folks can die, folks can get their kids back, all sorts of things can happen. So taking additional evidence on appeal is something which is often centered in dependency cases.
Tim Kowal 7:02
Yeah. And you mentioned, I've seen this law on that as well. But those 909 motions, asking the court of appeal to take evidence and make a finding, in the first instance, without having to wait for the time and expense of sending it back to the trial court to do it. The Court of Appeal rarely does it and usually will, if it's going to do it, it will tend to do it more often, if it's going to result in an affirmance of the order. And I wonder, I don't recall that being part of the 909 statute that the court shall, you know, do this rarely, and only in favor of affirming that seems like a judicial gloss on the rule that we're gonna do more in favor of affirming that I remember reading a justice Riley's damn column a couple of months ago responding to the objection that well, don't the don't the courts have their thumb on the favor of the respondent isn't in any affirming business. And in his responses? Well, the court isn't in the affirming business, it is in the affirming business, but only because the statutes and rules are written that way. But section 909 isn't written that way yet that there's a judicial gloss on it that suggests that the courts has put itself in the affirming business.
John Dodd 8:02
Right, that's true. It says that s case is the case that they don't take additional evidence for work on reversals just on affirming. Yeah, just thinking,
Jeff Lewis 8:10
Hey, John, on the subject of dependency work, I've never done it. I've done appointed work in the criminal context, can you talk a little bit about dependency cases and why you do them and why you accept appointed work, when you could probably command a high hourly rate and to have your plate full of civil litigation for the rest of your career? Why do you bother with dependency work?
John Dodd 8:29
Well, a couple of reasons. One, when I left the court 30 years ago, and came back, I was in Fresno came back down here to open my practice I was with and then so I applied to the panel, you gotta have some work to do. And so I handled those type of cases. So I checked that box. And I've been doing them and I've been doing them ever since. And so it's sort of an unending flow of work, which is probably a sad commentary on our society. But we're speaking before we started during COVID, when they shut down the courts, you know, there weren't a lot of civil appeals, because there weren't a lot of judgments. But there continued to be dependency cases was there is some satisfaction in you have to put your client in the box that the overweening hand of government is interfering with their family unnecessarily. And and sometimes you get those cases. And so I remember you're talking about you're wondering about war stories. So one of my war stories, we had a case and the child was mentally challenged, and the parents were a little slow themselves and there was basically a dirty house case
Tim Kowal 9:36
and a dirty house case. What do you mean by that? Like literally
John Dodd 9:40
dirty? Yes. I guess in the jargon. A dirty house cases is the parents do not keep the house fit enough to live in. Yeah, no, it's full of trash. There's debris, they don't put the kitchens filthy, everything's filthy. And it's just it can be diseased resident and a hazard for the kid. So these folks cleaned up their house, but the county wouldn't give them their kid back. And then So that was the appeal and eventually we won. But you know, they had the social worker would go out there and describe, you know, conditions as I think it was a Justice Sills opinion that are would be common on any farm in this country, you know, there was an outboard motor sitting there, you know, there was a wading pool with water in it, you know, and this sort. Yeah, and then so are
Tim Kowal 10:21
this there's a Simpsons episode with the social worker coming to the house and pointed out that the toilet paper roll was installed in the improper underhand fashion.
John Dodd 10:29
That's right. And so they we got that reversed. And to make sure we got to reverse my son who's an attorney now in his high school, he got his high school Key Club and got, they got out there, and we cleaned up these people's house, we, we cleaned it all, we got donations from IKEA and Home Depot, and, and all this stuff to make sure these people weren't gonna, you know, take this people's kid again. Yeah. And so you know, and he, this is one of the ones that just kind of limped into, you know, interview land. And so there was on the radio, and we were on John and Ken, and he says, one time that social worker came out and said, there are too many wasps. What am I supposed to do about wasps? You know, so every once in a while, you get those kinds of cases that you are preserving families that didn't need a little leg up, and other and then the rest of the ones, you know, you want to make sure it's just like a regular public defender, you know, we have something called due process. And I've won multiple cases where they didn't give the proper notice, or they just kind of made something up as they went along. And, and you gotta have due process. And so
Tim Kowal 11:32
how long have you been doing these cases jarred me? How long have you been doing these juvenile dependency cases?
John Dodd 11:37
Oh, 30. I've been practicing for 3536 years, and probably the whole 30 to 33 that I came back after the court I've been doing Oh,
Tim Kowal 11:45
yeah. So you find it rewarding for those reasons? Or is it? Does it get depressing, sometimes?
John Dodd 11:49
Well, it gets, it's not really depressing. Sometimes it's just kind of the same thing over and over. But it's not the same thing over and over to those people. Sure. As far as the impact on their life, it's a new thing. And so and then it the law was changing quite a bit in any time, when you get the law changing quite a bit, you know, well intentioned, judges make mistakes. So you get a bunch of reverses, and they're just doing the best they can with, you know, not enough resources and too many customers. And so, you know, when you get to a judge gets reversed. I think a lot of them don't take it personally, especially when you get in an area of in the laws and flex, like this Indian Child Welfare stuff.
Tim Kowal 12:30
And what stage of the proceedings? Are you coming in as the appeal already been filed? Or do you consult and whether to take the appeal,
John Dodd 12:37
right, the what the the appointment system works, just as the criminal system work that Jeff worked in a trial attorney will file a notice of appeal. And then it goes off to one of the appointing agencies, you know, for the different districts, and then they just kind of parcel them out and just call you or they just send you an email these days, if you want a case you want a case you want.
Tim Kowal 12:56
So is there a similar procedure as in criminal where if the appellate attorney finds no substantial issues, if you find no substantial issue in one of these juvenile dependency cases, can you back off the case?
John Dodd 13:06
Well, you know, you can't back it off, you got to file a brief, but it's a Phoenix brief as opposed to a when debrief. And the procedure differs by district, you know, some of the districts you just file a letter and they immediately dismiss the thing. And then other districts give the client 30 days to file something.
Tim Kowal 13:23
Got it, you know, you're working over 2000 appeals. Do you like being the appellant the underdog, or do you like winning being the respondent?
John Dodd 13:31
I was thinking about that, I suppose I'd rather be the respondent but you know, when you're the respondent, you're not coming up with cutting edge new legal theories, you know, you're not changing the law, you're the whole purpose of being the respondents is to say, every, you know, nothing to see here, keep moving, nothing to see here. And so, to that extent, you like being the appellant because, you know, when sometimes when you win, it's it can really change can be a game changer.
Tim Kowal 13:56
I wonder if when you're the respondent, if you're like me, and you like try it, like finding those appellants who are not represented by an appellate specialist or a listener to the California appellate law podcast, and you pull out your rules of court and all of your respondents trap Oh, you forgot to cite all the evidence that is substantial evidence issue or, you know, fee cited the wrong standard of review, or you may, you know, you didn't pull all your key arguments under their own separate headings. Right. Whammy.
John Dodd 14:20
That's right. Unless you you know, the courts look to a firm they really do.
Tim Kowal 14:26
Yeah. What was it like being a research attorney at the District Court of Appeal?
John Dodd 14:30
Oh, it was a it was a very good experience. You know, I guess every court is different and I was only there I wasn't at the others but you know, you get to hang out with people that know a lot more than you do. About and every justice is different. Some justice were you know, micromanage the whole thing and other justice still looks good to me. You know, when you give them their memo and some send it back do it again. I don't like that. So but it's you get exposed to a wide variety of topics. You know, we did you know, it wasn't a dedicated staff. So I did criminal cases. And he's dependency cases and the termination of parental rights cases, which is sort of not really dependency, but it's the private, like contested adoption cases. And that ended up being sort of my specialty in the civil world, as well as just regular civil cases. But we did a little bit of everything.
Tim Kowal 15:14
Did you take any tips like brief writing tips with you, from your time on the Court of Appeal?
John Dodd 15:20
Yeah, just I would say it just all the regular things you usually hear be short, you know, I mean, if you can you go, you know, especially now they're really overworked. So they really stick to these 14,000 word limits. I mean, it's amazing how we used to be able to have a 19,000, you know, say, Well, I got a 3000 page record, and there's 10 issues, and that did and they'd say, Okay, now they just say no. So you have to go through and shorten every single sentence. And you have to, and to do that after you've done that, then you sort of ingrain that habit, you know, use active verbs and use two words instead of three throughout the whole thing. And that makes your brief, easier to read and clips right along. And as you mentioned, sort of before, it's sort of a rule, you know, have all C sub headings make it easy on the court, you know, and that's the thing, the court they all say how they're overworked, as if we're not, but make it easy on them to decide in your favor, no matter which side you're on. You know, I always think that, you know, you should be able to read an introduction say, well, that person might win. And then you read the table of contents and say, oh, yeah, that person might win. And then you read the brief and say, that person's gonna win. But so it's you make it easy on him. And you know, don't hide the ball. Don't be cryptic, you know, you want to you don't want to be boring. It doesn't have to be dragnet style. But it doesn't have to be too flowery, either, you know, you want you know, I'm sure they appreciate a good turn of phrase here and there. But I think too much of that distracts from your legal argument, just so that's it, make it as straightforward as you can and make it easy for the court.
Tim Kowal 16:52
Yeah. And when you started your practice, you were doing both litigation and appeals. And then after some years progressed to doing exclusively appeals, you tell us about that progression?
John Dodd 17:01
Yeah. So we, you know, it's kind of hard. You guys do a little both. So you probably know, but you know, when you gotta go do a deposition. You know, when you get exported into something, you know, it's kind of hard to, you know, if you have, you know, a smaller appeals one thing, but if you've got a, you know, 4000 Page record that you've got to get through and a due date, and all of a sudden, somebody dumps a motion on your desk to answer if you're not the person in charge. Or if you are the person in charge, the other side sends you an ex parte something that you've got to answer that just drops your whole flow. And so it just became increasingly difficult to do both. And it's so that's why, you know, I don't take anything I don't gainsay trial counsel, you know, I used to be a trial attorney. But I probably haven't been in a trial court for 20 years, I couldn't, you know, lay a foundation for an expert if you paid me, you know, but I can read the record and figure out how they didn't do it. Yeah. But you know, I have to, but so that's the thing that you know, everybody you know, I tell people, I don't do plumbing either, you know, they're really different skill sets, I
Tim Kowal 18:05
think, right? What are some tips that maybe you might have for trial attorneys? Maybe they're not at the appeal stage yet? Maybe they are, you know, they're pre trial? Do you have any tips for them? You know, I always get frustrated when I've got a client who comes to me with an appeal. And I say, Well, you would have had do good issues here. But you know, the proper groundwork wasn't laid for them at the trial. And I would prefer to be able to help them do the right thing, rather than tell them what they should have done. You have ways of conveying that to trial attorneys.
John Dodd 18:29
Probably the most most important is no secret is to make sure you have a record, you know, a lot of people they I asked Well, there was a reporter and they say they don't know, you know, why don't you know, I don't even know if there's a reporter Right? Or if there is an electronic monitor these days, you know, I don't know, well, it's on the minute order, you know, and I guess la you can order them online, but to me, you know, if you have some kind of a dispositive motion, or even something that might go south, you know, have a reporter because otherwise you've got to do a settled statement, you're not dead in the water. But you know, you lost that's why you're coming to me. So you're gonna write up what happened and the other side is going to write up something totally different. And say, that's not what happened. They didn't say that they didn't make that objection. And the judge, you know, assuming we're all assuming all proud judges are men and women of goodwill, but they want to protect their rule. They're not going to say, oh, yeah, I called this guy a dirty sob in the middle of the hearing, you know, they're not going to do that. So And along the same way, if you know you are in a court, like a lot of times in family law, they do all this stuff off the record, they go back and chambers and just do it off the record. Well, when you're done you just say your honor like to place on the record bid bid bid bid bid. And a lot of times the judge may get a little irked, but you know, that's too bad.
Tim Kowal 19:48
Get it on the record, any way you can get it
John Dodd 19:50
on the record anyway, you can and then you know, take your lumps and it's he I know it's easy to you know, for me to say that because I'm not the one taking lumps and having you and stared down by some judge that I can have to appear for before next week, but you've got to do it. Because if it's not there, yeah,
Tim Kowal 20:07
yeah, I've sometimes suggested to to trial attorneys. You know, if they don't if their client is not well heeled enough to hire a separate appellate attorney to serve as embedded appellate counsel, at trial, at least have an appellate attorney, you know, on consultation retainer and call them up at the end of every day of trial and see, here's what happened. Here's the key evidence that we were able to get in, here's what we weren't able to get in appellate attorney maybe could advise, Okay, tomorrow, you need to put something on the record, you need to do an offer approved for whatever it is to help try to patch the holes,
John Dodd 20:36
right. And not only do an offer proof, do an offer proof in writing, or even a piece of paper, because that that, that that's gonna get stuck in the file and, you know, fall on your sword, you know, like the court to reconsider. I know, you said this, and that the other but I really think you know, all he's gonna do he or she is going to do is yell at you, you know, they're not going to sue you for malpractice judges. So
Tim Kowal 20:55
are there any common mistakes that you see trial attorneys make anything from poring over the record and over 2000 appeals that issues that I have mentioned that, gosh, this, this would have been a great issue, but no, there wasn't enough of a foundation laid for it, the attorney this would have been great evidence that was excluded. But the attorney didn't try hard enough to put it into evidence, what kinds of trial attorneys do you see come up again, and again? Well,
John Dodd 21:16
those are probably the main ones. But other than that is getting too emotional. You know, I mean, if you've got to be able to remote and convince a judge or jury, but you've got to keep tethered to reality also. And to really not getting blindsided by what's going on on the other side of the table, because you're you know, you think your clients been wronged horrendously, and you're gonna write this wrong? And isn't this horrible, and you can't see the other side? You've got to be able to see the other side, and then make your record about it.
Tim Kowal 21:46
Yeah. Hey, John,
Jeff Lewis 21:47
is there anything they just shot him this question? I'll ask you. First, is there anything unique about the way you handle appeals that your opponents would say about you, or maybe appellate justice, say about how you or your firm approach or handle appeals?
John Dodd 21:59
Well, I was looking at that question on your list. You know, I think that as far as from the client standpoint, you know, I'll tell them if they don't have a decent case. You know, I know there are people out there because people have gone from here and gone to them. And then they get this scathing opinion when it because I'll sign up for, you know, email notification on cases that people talk to me. And what I do is I as I review it, I do like an initial review and a reduced rate and or half a day or a day, depending on if it's a motion or a short trial, it's gonna take longer than that for a longer trial to see if it looks like we have what we call an arguable legal issue. And then I'll tell them, I'll just say, as I mentioned earlier, I'm fighting off this cold, you know, you have an issue, but it's just not going to happen. There's no way and in many cases, I just say I won't even brief it. I'm gonna do it.
Jeff Lewis 22:46
Let me ask you a related point. So you're talking about viability or frivolousness. Are there any pieces or arguments that you won't make arguments you won't make or cases you won't take? Not because they're frivolous? But just because of the ick factor you just don't want to handle?
John Dodd 23:00
Well, no, because I don't do Criminal Appeals anymore. I've had two capital cases, and those have significant serious things going on in but you know, it depends the you know, most of these most of the appointed cases, you technically get a choice, but you don't get much of a choice. And there's either a legal issue or there's not and you don't meet the person, you know, anyway. And as far as the private cases, if they have a legal issue, they have a legal issue, as far as I'm concerned. I mean, I suppose you could look at let's consider a restraining order cases. You know, a lot of people think they give restraining orders away a little too easily. And it's good reason to err on the side of caution. But, you know, maybe the person, you know, is not the best person that you want to invite over for dinner Sunday night, but if in fact, they've been wronged, you know, I think they deserve an appeal.
Jeff Lewis 23:51
Right. Interesting. Hey, in criminal law on appointed work, you know, often ineffective assistance of counsel is a is a thing for dependency work is ineffective assistance of counsel or commenting on the quality of the trial work, is that something you get into?
John Dodd 24:04
Well, they all think that all the clients but it's usually not proper counsel do sometimes make mistakes because dependency trial counselor very overworked lot more, of course, than criminal law, crowd counsel, but they're all generally panel people or agencies, you know, these kind of like public defender's office and 1234 in LA. And then that's all they do all day, every day. So they're usually not effective to that level. But and but when a private person comes to me in family law or something, I just say, I don't pine on that, you know, my job is to look and see if there's a legal error that appears to be prejudicial. And if you tell me your attorney didn't do this, and didn't do that, and didn't do the other thing, then you need to go talk on malpractice lawyer because I don't get into that. And practically speaking, I don't know what discussions occurred between that client and that client comes in and says ABC, and then you go to the attorney Ernie and he else he or she'll say, you know, def it just didn't happen that way. And then so I just don't get involved in that at all. And I explained that there is no effect in civil cases, there's no ineffective systems. You know, you can talk to if it's if it's soon enough, you may be able to do some kind of reconsideration motion or whatnot, or new trial motion, if you could pin it on accident and surprise. I mean, there's there's arcane writs, quorum, bulbous and novice but that has to be information that's not did not only you didn't have, but you couldn't have at the time. So basically, again, I tell people, I don't do plumbing. And I don't do in effects of this sentence of counsel cases.
Jeff Lewis 25:39
That's with your years of work in this field. I know you don't comment on malpractice. But do you ever serve as an expert witness or standard of care or legal malpractice cases?
John Dodd 25:49
No, I almost had one a year or so ago, but they got someone else was a major law firm that had allegedly missed something in an appellate brief that they should have raised. And I was going to work on that. But I didn't. It's just I'm happy doing what I'm doing. I don't need to branch out. Well, let
Jeff Lewis 26:05
me ask you this then other than writing appellate briefs, what is your favorite part of your practice today? What do you enjoy doing the most when you come into the office? Well, I
John Dodd 26:12
suppose I've spoken about that. It's two main different prongs. One is coming up with cutting edge legal arguments that maybe you just come up with. And for the appointed case, is that just something that you stumble on? You have no really luck of the draw? It's like you may know that I did the Sanchez case in the Supreme Court, the hearsay exceptions, the case specific hearsay and
Jeff Lewis 26:33
no, I didn't know that was you
John Dodd 26:34
as my case? That's your fault. Yep. You're okay. You know, that's totally luck of the draw. Yeah, you know, and I have another one pending right. Now, speaking of restraining orders, now, the Supreme Court's issued US Supreme Court issued Bruin, there's a very good argument that the firearm restriction in all these restraining orders is unconstitutional. Really, I'm arguing that in one case right now. So you know, you just do doing worker's comp defense all day, you just don't get to get those meaty arguments. You know, the other case that the US Supreme Court has right now is a constitutionally of the constitutionality of the Indian Child Welfare Act. And they just argued, and I think last month, well, I developed all those arguments in 96. And in 2000, in pujara, Santos why, I mean, I read every single Indian case that the US Supreme Court had ever written, I read the entire Felix Cohen handbook on Indian law. And I built these arguments about the 10th amendment and racial discrimination and this and that, and then so that sort of went by the wayside, but then somebody else came up with it, I think it was out of the Fifth Circuit, but that's pending in the US Supreme Court right now, of course, nobody called me but whatever it wants to, you get to the meat of it. And that just doesn't happen at all. And I guess the other half is that, you know, I've got a dress shirt on right now. But it's not I usually wear a polo shirt and shorts, and no tie. And it does give me some flexibility. Now I have a lot to do. So I have stuff to do all day, every day. But I'm active in some very specific organizations. And if I have to go travel and do something, you know that it may mean that I have to work more the week before in the work week afterwards. But it gives me the flexibility to go do that. Because you know, you just when there's an argument date or a due date or emergency read or something, then you know, you don't really have much flexibility. But other than that you've got a little more flexibility. Yeah.
Tim Kowal 28:25
So it sounds like a moment ago when you were talking about you know, in some legal issues, important legal issues. You've been at the front lines, like the you know, you're the attorney on the on the Sanchez case concerning the what's the rule about the hearsay, non non case specific hearsay, you did all the legwork on the Indian Child Welfare Act way back in 1996. And now it's being brought up in what do you say 10th amendment constitutional litigation concerning states rights issues. And so is there a secret to that? Or is it just being around and just rolling up your sleeves when you find the interesting meaty issues? And you know what one of these days like you said luck of the draw it was is what you attributed to and Sanchez, you just wind up on the frontlines of some of these issues.
John Dodd 29:01
It really is luck of the draw. I was thinking I have a related case on construction, licensing and that kind of thing. I did the Jeff Tracy case, which I don't know if you do any construction law, but it's, you know, some of those things are private cases that are just luck of the draw to you just have to kind of be open. You know, unfortunately, most things need to be preserved in the trial court. Again, not only your facts, but your legal arguments, because, you know, there's case law out there that says that, you know, the trial judge can't be you know, be held, I've made a mistake if he was never asked basically. So most issues need to be raised in the Prop court, but not all, it just depends what the Court of Appeal wants to set its teeth into and you never know if some question is some pet peeve of some justice from 20 years ago when they were a trial attorney. You just never know what's gonna really pique their interest because they have so many cases that are mundane, but if you can make your case, something that piques their Your interest and can justify going, you know where no man has gone before they'll do it if they want to. But if they don't want to, you're done.
Tim Kowal 30:08
Yeah. Well, is there a secret to that you say it's important to find an issue that piques the justices interest. So it's got it, there's got to be some value in going to a lot of local bar events featuring these justices and following what kinds of issues they're interested in what kind of arguments in cases they're interested in? Is that something that's been of value to you, when you served as a research attorney at the fifth district, you must have gotten to know what kinds of cases piqued the interest of the various justices there.
John Dodd 30:32
Back then. Yeah. But and so I, I've just I've been doing some other things. You know, as you may recall, I was very active in the bar here as on the bar board and right, that sort of thing. And did went to a lot of events. And you know, a lot of justices are very upfront about where they stand on certain issues, the way justice riders dam for one way, Justice Sills for another, we'll talk about any living justices, but but if you can figure out their judicial philosophy and put yourself in that box, it sure doesn't hurt, you know, probably I don't know, whether it's 90% or 95%, or, you know, 85% of the cases, they're gonna come out one way, you know, it's you have to see if your case, isn't that miniscule swing district of cases, that you know, you can change somebody's mind about something and take it in some other direction.
Jeff Lewis 31:22
Hey, John, you've been doing this long enough to remember what it was like to litigate and handle appeals for the anti slap law. And you know, a lot of people think anti slap law has logged up our courts because of the limited right to immediate appeal, and other people think well, but they get rid of frivolous cases, sadly, clear up the docket that way, what is your take on California's anti slap laws? And a net is a net plus?
John Dodd 31:42
I think so I've only had a couple anti slap cases. And none recently, because I find that I don't know whether you guys have those. But once you start doing them, people come to you. And so I haven't been doing them lately. But it seems to me it makes sense. But it's sort of its own cottage industry, as you're sort of alluding to. And so it seems to me that it's better to get rid of these cases, you know, litigation is so expensive these days. But if you can weed something out earlier, you ought to do it.
Jeff Lewis 32:08
You know, I gotta say, I do a lot of anti slap work at both levels trial and appellate. And I would like to see the sanctions part have more teeth for when a frivolous anti slap motion is filed, because when an anti slap motion is frivolous, and a case is put the brakes are put on the case for two years, no discovery, etc. It could be devastating to a legitimate plaintiff with legitimate claims. So I'm a big fan of the anti slap law, I think 90% of the time, anti slap motion or rightness, but sometimes it's abused. Interesting. Hey, you know, we talked a little bit earlier about court reporters. And when you start practicing law, you know, we had a court reporter in every courtroom, family law, probate harassment, restraining orders, etc. And now, you know, la just announced they're not going to have court reporters family law for a restraining order hearings, and you got to bring your own. And it seems like court reporters are not available because they're not available. It's not a matter of throwing money at them. It's just not available. Where do you see with your years of experience? Where do you see the court reporter shortage ending in terms of preparation of records and transcripts and how it impacts appeals?
John Dodd 33:07
Well, I haven't really thought of that. I think as they go more towards, you know, if electronic monitoring seems to make sense to me, because then if you need a transcript, you can get the recording transcribed. And that would deviate it, but for some reason, they're not even electronic monitoring, and a lot of these things, and I don't understand that. And I guess the courtrooms just don't have the technology. Like I said, I haven't been in a courtroom for a long time. So yeah,
Tim Kowal 33:30
you had mentioned about the electronic recording system that I think is still active and available in some of the limited civil departments. And I wonder if you've ever handled handle any appeals that deal with those chronically recorded records
John Dodd 33:43
I've had, I probably get one every year or two limited civil, and some of them have electronic monitoring. And you can I guess, I forget whether it's in Orange County or LA or both, but you can have the audio just sent right to the Appellate Division, or you can have it transcribed. So I did have one last year that we did that we just had
Tim Kowal 34:02
to transcribe. You have a transcribed as the transcription gets sent up to the Court of Appeal as well. Right. Right. Right. Yeah. Okay. And did that work out fairly well, or were there a lot of garbled audio? Oh, it's, it sounded pretty fine. Okay, I'm doing some research for a piece on the court reporter shortage and looking at the legislative record for all of the, you know, the alleged deficiencies of the electronic recording system, and this was back in the 90s. So they had, you know, physical tapes, and someone would have to be there to change the tapes out every 45 minutes, or whatever it was, I think we've been able to surpass a lot of those problems. Here we are 30 years later, and we're doing everything via zoom. And, you know, no one most new attorneys probably never even heard of a cassette tape.
John Dodd 34:40
And of course, the court reporters union who wouldn't be favor of more electronic monitoring?
Tim Kowal 34:45
No, probably not. Although there's no you think that there'd be less of less invective because there's simply a lack of human resources, just not as many people becoming court reporters anymore. So it sounds like a job security issue. It was 30 years ago.
John Dodd 34:59
Well, it is a pretty big Acting tasks. I mean, I couldn't do that.
Jeff Lewis 35:02
So, yeah, yeah, yeah. You don't do plumbing. You don't do cord recording. Make a note of that. Hey, John, I was wondering on the issue of oral argument, putting aside compensation issues, whether or not the projects compensate you for going to an argument or not putting that issue aside? What is your general philosophy? I'd go into argument waving argument insisting on it. If you're the appellant or the respondent, what are your thoughts about the utility of oral argument?
John Dodd 35:25
Well, I think Justice beds worth once said that you should always ask for argument unless your client can't pay for it. And you don't want to do it for free or something like that. Usually, it's a waste of time. But the problem is, you don't know you don't know if your case is in that 10% of cases, that it's not a waste of time. And so you in civil cases, I think always I won't say always because I'm sure I'd have, you know, 1000 retain cases. I've not asked for argument a couple times, sometimes as a respondent, if the appellant let's say they do the appeal brief, and you do the responding brief. And their brief, their case is just garbage. And they don't even file a reply. I don't ask for argument, right, as that gives them an opportunity to say something about your respondents brief. Whereas if that had been the normal sequence of events, you get the reply brief, and this and then you decide as a respondent whether you think you better ask for argument or just skip it. So in even in a retirement, so as I would say, in that instance, in a retain case, where the appellant is horrible, and they don't file a reply, I don't ask for but other than that, I do ask for argument, but I try and keep it short. You know, my time estimates are usually seven minutes, 10 minutes, 12 minutes, you know,
Jeff Lewis 36:41
I usually ask for nine because I can district they do the shortest arguments,
John Dodd 36:45
you can get in front of the 10 people
Tim Kowal 36:47
getting the prices, right, yeah.
John Dodd 36:51
You know, and it's just kind of hitting the high points. And that's how you can tell the guys that are the trial, people doing their own appeals from the appeal people, you know, I walk in with a little red robe holder and some yellow pads, and they come in with a wheelie cart, or three boxes, you know, what the heck are they gonna do with that? So, yeah,
Tim Kowal 37:09
I think Justice railers, there's someone on the fourth third here used to say, when do they got a 15 minute oral argument estimate? 15 minutes. Counsel where your briefs that bad?
John Dodd 37:18
Yeah, you know, you just want to hit the high points. And just sometimes something you said wasn't clear, you know, and or wrote wasn't clear, and you should be there to clarify it. And sometimes you never know, something pops up in between the reply brief. So my general preparation is if you ask for argument, then a couple of weeks before shepardize, everything to see if there's any new authority. And then so you know, some districts are a lot tougher on this. Now, they don't want any new authority, they don't care if it's a new case, they don't want it. And you can bring it along with you and talk about it. But usually, depending on the district, then if you if something new came up, or if some review was granted, in some case, you'd want to submit an additional authority and in sufficient time for the other side, read it not the night before and sufficient time for the court to look at it. And then a couple days before the argument, I just go over over everything and try and memorize as much as physically possible. But you're just you just have a few brief points and see if they just sit there, you know, like this, or they're asking a couple questions. You got to be able to answer them. But big long talks are a total waste of time.
Tim Kowal 38:28
Yeah, yeah. I had an oral argument recently where my opposing counsel started to started to mention a case. And almost before she could get it out of her mouth. The Justice said, counsel, I don't recall reading that about that case in your briefs. So how can I how can I consider and I thought, holy smokes. I mean, they really know what cases are in there. There must have been, you know, 75 100 cases cited and all the different briefs and they can you know, you could spot it out that quickly. Have you ever had an oral argument where you came out and you thought I'm glad I requested oral argument. This one really seems like it may have turned the tide? Yeah, a
John Dodd 38:58
few times. I'll tell you though, I had an argument a long time ago, where I was literally yelled at for half an hour and one.
Tim Kowal 39:06
I got to hear more about that one.
John Dodd 39:09
That was one of the earlier parental rights cases. I found out he wasn't the father.
Tim Kowal 39:14
But you were yelled at by a justice.
John Dodd 39:16
Yeah. And he was we were suing the mother. And, you know, he was trying to get into adjudication that the kids weren't his kids and because he wanted to nail the other guy who was the biological father and it turned out that I mean that they've changed the law since then that we went we got into Juji Houston he's not the father. And so but they lived as his kids for a couple of years. They thought he was dad so we were just trying to nail the other guy we weren't trying to you know, have him not know the children anymore. But this was out in Riverside may even been was in San Bernardino before he even got to Riverside. But they were pretty incensed. And you know, my guy did not wear the white hat. He wasn't in the morally superior position, but he the law as I saw it, anyway was on on his side, you're much better off going in with somebody in the morally superior position. But things happen.
Tim Kowal 40:07
And last question on oral arguments. Do you have any tips or insights? How to anticipate the courts questions? If you've been living with the case? You've wrote the briefs, obviously, how do you get yourself out of the box to think questions that the Justice might have on their mind?
John Dodd 40:20
Well, if you have time and staff and your client has money, then you can, you can moot court it but in reality, small and mid level clients, not small clients, but small budget items and small budget cases. And you know, we rarely have anything over a couple of million dollars, five $8 million, you know, those kinds of cases, if you want to move on from there, fine. But dealing with middle class people and middle class businesses, they don't have the time. They don't have the funds for two or three attorneys to sit around and bat something around. But if you have the time and have the budget, then it's good to moot moot court. Yeah. And, you know, obviously, you're just sort of kind of due diligence and doing the research. If there's any dissents that are anywhere near your case. You want to be familiar with those dissents? Because those sets might turn out to be majority opinions in somebody else's.
Tim Kowal 41:05
Yeah. Yeah. Yeah, my the best I've come up with is when I get if I'm an appellant and I get the respondents brief, you know, I write down my extemporaneous notes. You know, my first reaction is because I haven't read my appellant's brief and maybe a few months, so maybe I'll read the respondents brief thing in a that's that's pretty good argument. And then obviously, I'll lay them all to waste in my devastating reply brief, but by the time I get ready for oral argument, maybe I want that hot take, but I think their best arguments were when I first read their brief.
John Dodd 41:29
Right, you should be able to respond. That's correct. What do you think their best argument is?
Tim Kowal 41:34
Yeah. All right. Well, let's run a little bit a little bit long. But we would like to subject you to the gauntlet of our lightning round where we asked you, Jeff, I'll let you take over and run the lightning round here. All right.
Jeff Lewis 41:45
This is the time for our patented copyrighted segment of the show that answers the most pressing questions that Vex appellate nerds around the world short responses, one sentence where you can the most vexing questions that concern appellate nerds are number one, what is your font preference for brief century school book? garmont, or something else
John Dodd 42:02
than free school book? 13? That's what they all say.
Jeff Lewis 42:06
That is the only correct answer. Two spaces are one after a period
John Dodd 42:09
two. I'm old school.
Tim Kowal 42:11
Oh, I think we're split about 6040. On that one. I think we got 60% say in one space, if we get about 30 or 40%. Say in one. All right.
Jeff Lewis 42:20
It briefs in the California Court of Appeal your headings your argument headings, not table of contents and statement jurisdiction, but your major argument headings, all caps, initial caps sentence case or something else.
John Dodd 42:31
I don't like all caps, not even for the main heading. I said I think it's yelling. I don't like it.
Jeff Lewis 42:36
Okay, all right. So you're not terribly old school. That's very progressive thinking. All right. And on a similar note, left, justify or Full Justify just left. Alright. And final question of lightning ran round after major headings in a brief when you're going to a new section, do you start the next section on a new page? Or do you continue immediately
John Dodd 42:56
below? My sort of rule of thumb, if it's in the bottom third, I go to a new page.
Jeff Lewis 43:03
Okay. All right. Nicely done. very concise. I think that you get the award for the most concise answers to a lightning round ever. So thank you for that. Back to you, Tim.
Tim Kowal 43:12
All right. Well, here's my one addendum, I want to know the answer this question when you refer to the Superior Court, is it is the uppercase Superior Court or lowercase? Or do you just say trial court?
John Dodd 43:22
No, it's slow. It's supposed to be lowercase, lowercase, Superior Court s, lowercase c. And same with Australia. Yeah, that's Orange County Superior Court, you know, Superior Court of Orange County, it's s but if you're just saying the trial judge, the superior court or the trial court, that's all lowercase.
Tim Kowal 43:39
That's how it's defined in the rules of court I've noticed is lowercase. Okay, all right. Well, John, thanks for being here. That's gonna wrap up this episode. Again, we want to thank case tags for sponsoring the podcast each week, we include links to any cases that we might discuss, we use case text for those links, and listeners of the podcast can find a 25% lifetime discount available to them if they sign up at casetext.com/cap. that's casetext.com/calp.
Jeff Lewis 44:05
If you have suggestions for future episodes, or guests, please email us at info at cow podcast.com. And in our upcoming episodes, look for tips on how to lay the groundwork for an appeal when preparing for trial.
Tim Kowal 44:15
Thanks. See you next time.
John Dodd 44:16
Thanks for having me.
You have just listened to the California appellate podcast, a discussion of timely trial tips and the latest cases a news coming from the California Court of Appeal and the California Supreme Court. For more information about the cases discussed in today's episode, our hosts and other episodes, visit the California appellate law podcast website at Cao podcast.com. That's c a l podcast.com. Thanks to Jonathan Cara for our intro music. Thank you for listening and please join us again
Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes summaries of cases and appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at email@example.com or (714) 641-1232.
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